Citation Nr: 9834397
Decision Date: 11/20/98 Archive Date: 11/24/98
DOCKET NO. 91-18 188 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Reno,
Nevada
THE ISSUES
1. Entitlement to compensation under the provisions of
38 U.S.C.A. § 1151 for cardiac disability, to include
arrhythmia and ventricular tachycardia, as a result of
treatment by the Department of Veterans Affairs (VA).
2. Entitlement to an increased rating for bronchial asthma,
currently evaluated as 60 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
K. S. Hughes, Associate Counsel
INTRODUCTION
The veteran served on active duty from September 1948 to June
1949 and from August 1950 to March 1951.
The VA Regional Office (RO) in Los Angeles, California,
denied the veteran’s claim of entitlement to compensation
under the provisions of 38 U.S.C.A. § 1151 for a cardiac
disability, to include arrhythmia and ventricular
tachycardia, as a result of treatment by the VA by a January
1990 rating decision. He appealed his claim to the Board of
Veterans’ Appeals (Board).
In a November 1996 decision, the Board denied entitlement to
compensation under the provisions of 38 U.S.C.A. § 1151 for a
cardiac disability. The veteran appealed the Board’s
decision to the United States Court of Veterans Appeals
(Court).
In March 1998 the VA Office of the General Counsel filed a
motion to vacate and remand the Board’s November 1996
decision and to stay further proceedings. On April 24, 1998,
the Court granted the motion for remand, vacated the Board’s
decision, and remanded the matter to the Board for compliance
with the motion for remand. [citation redacted].
The Board notes that the November 1996 decision of the Board
included the issue of entitlement to an increased rating for
bronchial asthma, rated as 10 percent disabling, which was
remanded for additional development. After the additional
development was accomplished, the 10 percent rating for the
veteran’s bronchial asthma was increased to 60 percent. Such
a grant does not terminate the issue on appeal. The Court
has held that where a veteran has filed a notice of
disagreement as to the assignment of a disability evaluation,
a subsequent rating decision awarding a higher rating, but
less than the maximum available benefit, does not abrogate
the pending appeal. See AB v. Brown, 6 Vet. App. 35, 38
(1993). Thus, as the veteran could be awarded a schedular
rating in excess of 60 percent for bronchial asthma, the
Board considers this issue to still be on appeal.
REMAND
The veteran contends that VA medical treatment in 1981 caused
additional cardiac disability, including arrhythmia and
ventricular tachycardia. He further claims that 115 pages of
his medical file were missing and without these pertinent and
conclusive pages, he did not receive a proper adjudication.
The motion to vacate and remand the Board’s November 1996
decision and to stay further proceedings filed by the Office
of the General Counsel included the following:
During the course of preparing the Record on Appeal
it was discovered that the BVA [Board] may have
made its decision without the benefit of all of
Appellant’s pertinent medical records. In his
Counter Designation of the Record Appellant
indicated his desire to include approximately 115
pages of medical records forwarded to the BVA and
the VA Regional Office (RO) in January 1997,
subsequent to the issuance of the November 1996 BVA
decision at issue before the Court. The documents
submitted by Appellant are VA medical records
predating the instant BVA decision which were not
part of Appellant’s three-volume claims file.
After obtaining such records, the VA Regional
Office (RO) assembled a fourth volume of
Appellant’s claims file. It is the position of the
Secretary that since these documents include
records pertaining to the surgical procedure in
1981, the BVA should review Appellant’s entire
claims file, including the newly assembled fourth
volume and readjudicate Appellant’s claim,
including whether Appellant’s claim is well
grounded.
Further, in his Counter Designation of the Record,
Appellant requested “[o]n site visit team
reports” from the VA Hospital in Long Beach
California, dated August 5-12, 1985. This specific
report could not be located in Appellant’s claims
file, but Appellant has indicated that he received
these documents in redacted form. Additionally, he
has indicated his belief that he is entitled to
review the edited portions of these documents.
In an August 24, 1998, letter to the Board, the veteran
requested that his case be returned to the Reno, Nevada, RO,
for initial review of new evidence and adjudication of his
claims of entitlement to compensation under the provisions of
38 U.S.C.A. § 1151 and entitlement to an increased rating for
bronchial asthma. Thereafter, in a September 2, 1998,
letter, the veteran stated that he did not want his 1151
claim adjudicated by the Board without the unredacted closure
report of the Long Beach VA Hospital.
In this regard, the Board notes that, although the September
3, 1998, and September 16, 1998, cover letters which
accompanied the above statements from the veteran included a
waiver of RO consideration, in light of the content of the
above statements from the veteran, this case should be
remanded in order to provide the RO with the initial
opportunity of readjudicating the veteran’s claims. See 38
C.F.R. § 20.1304(c) (1997).
Additionally, in April 1991, the veteran was afforded a
personal hearing before a Member of the Board. On October 5,
1998, the Board advised the veteran that the Member of the
Board who conducted the April 1991 hearing was no longer
employed by the Board and, as the law requires that the Board
Member who conducted a hearing on an appeal must participate
in any decision made on that appeal, he had a right to
another hearing by a Member of the Board. On October 20,
1998, the veteran responded that he wanted to attend a
hearing before a Member of the Board at the RO.
In light of the foregoing, the Board finds that further
development, as specified below, is warranted. Accordingly,
this case is REMANDED for the following development:
1. The veteran should be requested to
submit a list (containing names,
dates, and addresses) of any
additional sources of treatment (VA,
private, or other) that he has
received since 1981 that might have a
bearing on his present appeal. This
is not meant to include records of
treatment which have already been
identified and/or obtained. After
securing any necessary release forms
or authorization, the RO should
directly contact the sources which are
identified and obtain copies of the
records in their possession, as
required by 38 C.F.R. § 3.159 (1997).
Any evidence that is obtained should
be associated with the claims folders.
2. The RO should respond to the veteran’s
request to obtain unredacted copies of
all data pertaining to the on site
report, sponsored by the VA Medical
Inspector, regarding the closure of
the cardiac surgery department at the
VA Hospital in Long Beach, California,
as well as his requests to obtain any
other documents pertinent to this
claim.
3. The RO should give the veteran and his
representative an opportunity to
submit additional evidence and
argument in support of the claims on
appeal.
4. After completion of the development
requested above, the RO should review
the claims on appeal. This review
should include consideration of the
115 pages alleged to have been
excluded from prior considerations as
well as any evidence obtained pursuant
to this remand. In the process, the
RO should give due accord and
consideration to the points that were
noted by the Office of General Counsel
in the March 1998 motion, which was
incorporated in the Court’s April 1998
Order and which has been associated
with the veteran’s claims folder. The
rationale for the decision, whether
favorable or unfavorable to the
veteran, should be clearly explained,
citing to all governing legal
authority and precedent, and the
veteran and his representative should
be provided appropriate notice of the
decision.
5. If the claims continue to be denied,
then the veteran and his
representative should be furnished a
supplemental statement of the case and
given an opportunity to respond.
6. Additionally, if the claims continue
to be denied, the RO should schedule
the veteran for a hearing before a
Member of the Board at the RO. All
communications with the veteran and
his representative regarding the
scheduling of a hearing should be
documented in the claims folder,
keeping in mind the 30-day advance
notice requirement specified at 38
C.F.R. § 19.76.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1998) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
Gary L. Gick
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1997).
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